Divorce can be nobody’s fault – the law should do more to recognise that

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Sharon Thompson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

The law affecting families in England and Wales is changing. Since legal aid was withdrawn in family law cases by legislation in 2012, resolving disputes amicably on divorce has never been more important. People are having to navigate a complex legal framework without legal support at the most emotionally fraught time of their lives.

But the law itself is failing divorcing couples by making compromise more difficult. It effectively encourages spouses to attribute blame even when no-one is at fault. Family lawyers and leading judges are now calling for legislative reform.

Since the 1970s, the sole ground for divorce in England and Wales is irretrievable breakdown of the marriage. This is established on proof of one of five facts: adultery, behaviour, desertion, two years separation with consent or five years separation without consent. The latter two facts require no fault but do mean years of waiting – and if a couple mutually wish to divorce there may be various emotional and economic reasons why they cannot wait this long.

So, although couples are not required to attribute blame to establish irretrievable breakdown, they are often compelled to do so if they want to end their marriage quickly. For instance, if one can prove that their spouse is guilty of adultery – an option not available to same-sex married couples – or behaviour that is unreasonable, the divorce can be finalised in less than six months. All this means that divorce is a much quicker process when there is someone to blame.

It is therefore unsurprising that the latest available statistics indicate that the most common reason spouses divorce is unreasonable behaviour, as the graph below shows. A YouGov survey commissioned in 2015 by Resolution, an organisation of family lawyers, found that 27% of couples proved irretrievable breakdown on the basis of fault because it was quicker and easier, admitting that neither spouse was to blame for the separation.

Fabricating fault

One of the most significant reasons spouses turn to apportioning blame is that their property and finances cannot be divided until the divorce is finalised. For individuals who had previously been financially dependent on their ex-partner, a delay of a couple of years in financial relief could be disastrous. One way of avoiding this is to blame the other party for the marriage breakdown, even if such allegations are untrue.

This is problematic to say the least. Spouses may ruin an otherwise amicable separation by having to decide whose name will be recorded on the divorce petition as being responsible for the end of the marriage. Worse still, this process is unnecessary, as allegations of fault in a divorce petition have no bearing on how the marital assets are subsequently divided.

Research has shown that this emphasis on fault increases animosity during relationship breakdown, because it encourages family disputes to be resolved in an adversarial way. The consequences of this are serious. Attributing blame can lead to bitterness and hostility, reducing the chance of reconciliation and prolonging the resolution of issues such as child arrangements and financial redistribution. It also costs more and puts pressure on court resources.

Not only is this detrimental to any children involved, but an emphasis on apportioning fault in proceedings could also jeopardise couples’ chances for successful mediation. It has consistently been proven that mediation is less likely to be successful in high conflict situations, yet fault-based divorce brings conflict to the fore. For the increasing numbers of people representing themselves in court, a fault-driven divorce process further aggravates an already volatile situation. This can be very damaging when there is no solicitor present to alleviate tensions.

Appetite for reform

Reform that eliminates fault from divorce law would not only encourage a non-adversarial process, but as president of the Family Division James Munby put it, more “intellectual honesty” would be brought to the divorce process because spouses would not have to make fictitious accusations of unreasonable behaviour against each other.

Calls for reform have been around for 20 years. The Law Commission recommended reform in 1990. But, provisions seeking to eliminate fault on divorce in the Family Law Act 1996 were never introduced and were repealed by the Children and Families Act 2014.

Now, amid recent developments such as the potential introduction of online divorce next year, reform may finally be imminent.

On November 30, more than 150 family law practitioners from Resolution lobbied parliament to make divorce a “kinder process” by reducing the wait in cases where both spouses consent and no-one is deemed at fault from two years of separation to six months. There is also public appetite for no-fault divorce.

Those opposed to reform are concerned that it would mean a huge surge in the number of divorces, and that this, in turn, would destabilise the family unit. Yet, there is no research to support this and the divorce rate is currently at its lowest since the 1970s. In Scotland, where couples can consent to divorce after one year of separation without blaming either person, divorce rates are also decreasing.

Resolution’s campaign for the removal of fault-based divorce highlights the pressing problems with divorce law in England and Wales. Fictional allegations of fault are exacerbating bitterness at a time when spouses must go increasingly through to the divorce proceedings without any legal support.